A-30690, FEBRUARY 18, 1930, 9 COMP. GEN. 357

A-30690: Feb 18, 1930

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THE CLERKS OF A REPRESENTATIVE WHO IS DETERMINED TO HAVE BEEN ELECTED TO A SEAT IN CONGRESS ILLEGALLY HELD BY ANOTHER ARE NOT ENTITLED TO BE PAID COMPENSATION FOR SUCH APPROPRIATIONS FOR ANY PERIOD PRIOR TO THE DATE THE REPRESENTATIVE IS DETERMINED TO BE ENTITLED TO THE SEAT. 1930: I HAVE YOUR LETTER OF FEBRUARY 13. RELATIVE TO THE PAYMENT OF CLERKS WHO WERE EMPLOYED BY HON. DURING WHICH TIME HE WAS CONTESTING THE ELECTION OF HON. WAS THEREFORE ENTITLED TO THE SEAT. IS AS FOLLOWS: THAT HEREAFTER APPROPRIATIONS MADE BY THE CONGRESS FOR CLERK HIRE FOR MEMBERS. WAS RENDERED BEFORE THE ENACTMENT OF THE ABOVE LAWS. IT WAS BASED UPON PROVISIONS IN APPROPRIATION ACTS IDENTICAL IN PRINCIPLE TO THE LEGISLATIVE ENACTMENTS HEREIN CITED AND QUOTED.

A-30690, FEBRUARY 18, 1930, 9 COMP. GEN. 357

COMPENSATION - CLERKS TO REPRESENTATIVES IN CONGRESS UNDER THE PROVISIONS OF THE APPROPRIATIONS FOR THE FISCAL YEARS 1929 AND 1930, FOR CLERK HIRE OF MEMBERS AND DELEGATES OF THE HOUSE OF REPRESENTATIVES, AND UNDER THE PROVISIONS OF THE ACT OF JANUARY 25, 1923, 42 STAT. 1217, REQUIRING THE NAMES OF SUCH CLERKS TO BE PLACED UPON THE ROLL OF EMPLOYEES OF THE HOUSE, THE CLERKS OF A REPRESENTATIVE WHO IS DETERMINED TO HAVE BEEN ELECTED TO A SEAT IN CONGRESS ILLEGALLY HELD BY ANOTHER ARE NOT ENTITLED TO BE PAID COMPENSATION FOR SUCH APPROPRIATIONS FOR ANY PERIOD PRIOR TO THE DATE THE REPRESENTATIVE IS DETERMINED TO BE ENTITLED TO THE SEAT, OR UNTIL HE TAKES THE OATH OF OFFICE AND DESIGNATES HIS CLERKS IN ACCORDANCE WITH LAW.

COMPTROLLER GENERAL MCCARL TO WILLIAM TYLER PAGE, CLERK TO THE HOUSE OF REPRESENTATIVES, FEBRUARY 18, 1930:

I HAVE YOUR LETTER OF FEBRUARY 13, 1930, RELATIVE TO THE PAYMENT OF CLERKS WHO WERE EMPLOYED BY HON. HARRY M. WURZBACH, FOR THE PERIOD MARCH 4, 1929, BEGINNING OF THE SEVENTY-FIRST CONGRESS, TO FEBRUARY 10, 1930, DURING WHICH TIME HE WAS CONTESTING THE ELECTION OF HON. AUGUSTUS MCCLOSKEY, WHO, DURING SAID PERIOD, HELD THE SEAT OF REPRESENTATIVE FROM THE FOURTEENTH DISTRICT OF TEXAS PURSUANT TO A CERTIFICATE OF ELECTION DULY FILED. IT HAVING BEEN DETERMINED BY THE CONGRESS ON FEBRUARY 10, 1930, THAT MR. WURZBACH HAD BEEN DULY ELECTED AS REPRESENTATIVE OF THAT DISTRICT, AND WAS THEREFORE ENTITLED TO THE SEAT, HE HAS DESIGNATED AS HIS CLERKS THE TWO CLERKS WHO HAD BEEN EMPLOYED BY HIM DURING THE PERIOD IN QUESTION AND PROPOSES TO MAKE SUCH DESIGNATIONS RETROACTIVELY EFFECTIVE FROM MARCH 4, 1929.

THE APPROPRIATIONS MADE FOR THE CLERK HIRE OF THE MEMBERS AND DELEGATES OF THE HOUSE OF REPRESENTATIVES FOR THE FISCAL YEARS 1929 AND 1930, AS MADE BY THE ACTS OF MAY 14, 1928, 45 STAT. 523, AND FEBRUARY 28, 1929, 45 STAT. 1393, RESPECTIVELY, BOTH PROVIDED FOR THE PAYMENT OF CLERK HIRE FOR CLERKS "NECESSARILY EMPLOYED BY EACH MEMBER, DELEGATE, AND RESIDENT COMMISSIONER, IN THE DISCHARGE OF HIS OFFICIAL AND REPRESENTATIVE DUTIES.' EACH OF THESE APPROPRIATIONS PROVIDES THAT PAYMENTS THEREUNDER SHOULD BE MADE IN ACCORDANCE WITH THE PROVISIONS OF THE ACT OF MAY 24, 1924, 43 STAT. 152, FIXING THE COMPENSATION OF OFFICERS AND EMPLOYEES OF THE LEGISLATIVE BRANCH OF THE GOVERNMENT. SAID LATTER ACT PROVIDES, IN EFFECT, THAT CLERK HIRE FOR EACH MEMBER, DELEGATE, OR RESIDENT COMMISSIONER SHALL BE AT THE RATE OF $4,000 PER ANNUM, AND SHALL BE PAID IN ACCORDANCE WITH THE ACT OF JANUARY 25, 1923, 42 STAT. 1217, AND THAT NO PERSON SHALL RECEIVE A SALARY IN EXCESS OF $3,300 PER ANNUM. THE ACT OF JANUARY 25, 1923, BEING PUBLIC RESOLUTION NO. 82 OF THAT DATE, IS AS FOLLOWS:

THAT HEREAFTER APPROPRIATIONS MADE BY THE CONGRESS FOR CLERK HIRE FOR MEMBERS, DELEGATES, AND RESIDENT COMMISSIONERS SHALL BE PAID BY THE CLERK OF THE HOUSE OF REPRESENTATIVES TO ONE OR TWO PERSONS TO BE DESIGNATED BY EACH MEMBER, DELEGATE, OR RESIDENT COMMISSIONER, THE NAMES OF SUCH PERSONS TO BE PLACED UPON THE ROLL OF EMPLOYEES OF THE HOUSE OF REPRESENTATIVES, TOGETHER WITH THE AMOUNT TO BE PAID EACH; AND REPRESENTATIVES, DELEGATES, AND RESIDENT COMMISSIONERS ELECT TO CONGRESS SHALL LIKEWISE BE ENTITLED TO MAKE SUCH DESIGNATIONS: PROVIDED, THAT SUCH PERSONS SHALL BE SUBJECT TO REMOVAL AT ANY TIME BY SUCH MEMBER, DELEGATE, OR RESIDENT COMMISSIONER WITH OR WITHOUT CAUSE.

THE DECISION 27 COMP. DEC. 766, CITED IN YOUR LETTER, WAS RENDERED BEFORE THE ENACTMENT OF THE ABOVE LAWS, BUT IT WAS BASED UPON PROVISIONS IN APPROPRIATION ACTS IDENTICAL IN PRINCIPLE TO THE LEGISLATIVE ENACTMENTS HEREIN CITED AND QUOTED, AND INVOLVED PRACTICALLY THE SAME FACTS AS ARE IN QUESTION HERE. THE PURPORT OF THAT DECISION WAS THAT A REPRESENTATIVE WHO IS DETERMINED TO HAVE BEEN ELECTED TO A SEAT IN CONGRESS HELD BY ANOTHER IS NOT ENTITLED TO CLERK HIRE, OR ALLOWANCE THEREFOR, PRIOR TO THE DATE HE TAKES THE OATH OF OFFICE, AND DESIGNATES SOME PERSON TO RECEIVE SUCH ALLOWANCE AS PRESCRIBED BY LAW.

IT WILL BE NOTED THE APPROPRIATIONS FOR 1929 AND 1930 COVER CLERK HIRE OF SUCH CLERKS ONLY AS WERE "NECESSARILY EMPLOYED" BY THE MEMBER "IN THE DISCHARGE OF HIS OFFICIAL AND REPRESENTATIVE DUTIES.' IT MAY BE CONCEDED IN THE CASE PRESENTED BY YOU THAT THE TWO CLERKS EMPLOYED BY MR. WURZBACH WERE "NECESSARILY EMPLOYED" BY HIM, BUT I ASSUME IT WOULD NOT BE CONTENDED SERIOUSLY THAT THEY WERE NECESSARILY EMPLOYED "IN THE DISCHARGE OF HIS OFFICIAL AND REPRESENTATIVE DUTIES.' MANIFESTLY HIS OFFICIAL AND REPRESENTATIVE DUTIES DID NOT BEGIN UNTIL FEBRUARY 10, 1930, WHEN IT WAS DETERMINED THAT HE HAD BEEN DULY ELECTED REPRESENTATIVE OF THE FOURTEENTH DISTRICT OF TEXAS. IT MUST BE ASSUMED THAT THE OFFICIAL AND REPRESENTATIVE DUTIES OF MEMBER OF CONGRESS FROM THE FOURTEENTH DISTRICT OF TEXAS FOR THE PERIOD FROM MARCH 4, 1929, TO FEBRUARY 10, 1930, WERE PERFORMED BY MR. MCCLOSKEY AND THE CLERKS DULY DESIGNATED BY HIM AND WHO HAVE BEEN PAID AS SUCH. FURTHERMORE, UNDER THE PROVISIONS OF THE PUBLIC RESOLUTION OF JANUARY 25, 1923, MR. WURZBACH DID NOT AND COULD NOT DESIGNATE ANY PERSON OR PERSONS WHOSE NAME OR NAMES COULD BE PLACED UPON THE ROLL OF EMPLOYEES OF THE HOUSE OF REPRESENTATIVES, AS PROVIDED BY THAT LAW, UNTIL FEBRUARY 10, 1930, WHEN HE TOOK THE OATH OF OFFICE, AND THE DESIGNATION THEN COULD NOT HAVE A RETROACTIVE EFFECT, SINCE THE CLERKS WERE NOT, DURING THE PERIOD IN QUESTION, EMPLOYEES OF THE HOUSE OF REPRESENTATIVES BUT WERE EMPLOYEES OF MR. WURZBACH, WHOSE ELECTION HAD NOT BEEN CERTIFIED AND WHO DID NOT HOLD AS SEAT AS A MEMBER OF THE HOUSE OF REPRESENTATIVES.

UNDER THE CIRCUMSTANCES AS PRESENTED I HAVE TO ADVISE THAT THERE APPEARS NO AUTHORITY OF LAW FOR THE PAYMENT OF CLERK HIRE FOR THE PERIOD FROM MARCH 4, 1929, TO FEBRUARY 10, 1930, TO THE PERSONS DESIGNATED BY MR. WURZBACH.